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NON-REPORTABLE  IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION

WRIT PETITION (C) NO. 471 OF 2015

R.M. DHARIWAL 100% EOU  PETITIONER (S)                                       VERSUS

UNION OF INDIA & ORS.                        RESPONDENTS

J U D G M E N T  

KURIAN,J.

1. This writ petition is filed with the following prayers: (i) Issue  writ  of  mandamus  that  the  exemption contained under Rule-2 of Plastic Wastes (Management &  Handling)  Rules,  2011  must  be  available  to  the Petitioner  to  export  its  Pan  Masala,  Gutkha  and tobacco in multilayered plastic sachet and also in other packages containing plastic. (ii) Issue writ of Certiorari or any order, writ or direction in the nature of Certiorari quashing the impugned Rules 5(d) and 5(g) contained in Plastic Waste (Management & Handling) Rules, 2011 as amended vide notification dated 02.07.2011; and/or (iii)  Issue  a  writ  of  Mandamus  or  any  other appropriate writ, order or direction declaring Rules 5(d) and 5(g) of the Plastic Wastes (Management & Handling) Rules, 2011 as being violative of Articles 14, 19(1)(g) of the Constitution and also ultra vires the provisions of the Environment (Protection) Act, 1986; and (iv) Grant such and further orders as may be deemed just and necessary in the facts and circumstances of the present case and in the interest of justice.

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- 2 - 2. When  the  matter  was  listed  before  this  Court  on 13.10.2015, the following order was passed :

“ Learned  Senior  Counsel  appearing  for  the Petitioner states that the facts that obtain in the present  Petition  are  in  pari  materia  with  and materially identical to those which existed in the Writ Petition No. 466 of 2011 titled “Baba Global Ltd. vs.Union of India”. The Petitioner before us is also  a  100%  export  oriented  unit  exporting  Pan Masala,  Gutkha  and  Tobacco  across  the  globe.  In Baba  Global  Ltd.  by  Order  dated  03.09.2013  this Court had taken note of sundry undertakings given by the Petitioner  therein, the principal one of which was that no part of the production would be sold or released  in  the  local  market  in  India.  The Petitioner before us has filed a similar Undertaking and has assured the Court that it will abide by all the terms of the Undertaking. Baba Global Ltd. was finally disposed of by Order dated 03.09.2013 inter alia  by  noting  the  statement  of  the  learned Additional Solicitor General that Baba Global Ltd. would  be  exempted  from  operation  of  the  Plastic Wastes  (Management  and  Handling)  Rules  2011  (in short 'the 2011 Rules'). The learned Senior Counsel for  the  Petitioner  rests  his  case  on  that  Order seeking parity of treatment between both the sets of Writ Petitioners.

Learned  Senior  Counsel  appearing  for  the Respondents  submits  that  learned  Additional solicitor  General  was  not  authorised  to  make  the 'Exemption  Statement'  recorded  in  the  Order  dated 03.09.2013  since  the  stand  is  that  the  Ministry itself is not competent or empowered to grant any exemption. It is further submitted that for these reasons that a Review has been filed.

In the course of hearing yesterday as well as today  it  has  been  vehemently  contended  by  the learned Senior Counsel for the Petitioner that the existence  of  the  Review  is  not  reflected  on  the record. This contention seems to be vindicated by the fact that even in the affidavit filed on behalf of the Union of India particulars of the Review have been withheld.

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- 3 - Our attention has also been drawn to the Orders

passed in the Writ Petition No. 856 of 2013 entitled M/s.  Harsh  International  vs.  Union  of  India  on 06.12.2013 which reads as follows:

“Shri Radhakrishnan, learned senior counsel appearing for the respondents again requests  for an adjournment to enable his clients to  file reply affidavit. The time prayed for is granted. List the case on 20.01.2014. In the meanwhile, Petitioner No. 1 shall be  exempted from the operation of the Plastic  Wastes (Management and Handling) Rules,2011”  

It is evident therefore that a Writ Petition under Article 32 of the Constitution filed by Baba Global  Ltd.  has  been  finally  disposed  of  by permitting the 100% export of Pan Masala, Gutkha and Tobacco in multilayered plastic sachet; and in Harsh International interim orders have been passed exempting the Writ Petitioner from the operation of the said 2011 Rules.

We think it is imperative to impart parity to all  the  Writ  Petitioners  before  us.  In  these circumstances,  we  pass  orders  similar  to  those passed  in  Harsh  International  namely  that  during the  pendency  of  the  present  proceedings,  the Petitioner shall stand exempted from the operation of  the  2011  Rules  on  the  understanding  that  it shall strictly abide by all the terms contained in the  Undertaking  furnished  by  it  in  terms  of  its Affidavit dated 28th July, 2015.

As prayed for, Counter Affidavit be filed within six weeks from today. Rejoinder within four weeks' hence.

Tag with W.P.(C) No. 856 of 2013. List thereafter.”

3. The parties have completed their pleadings.

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4. The learned senior counsel appearing for the Union of India  (Ministry  of  Environment  &  Forest)submits  that  the undertaking would not be sufficient to meet the requirements under law.   However, it is pointed out that on this ground though a review was filed, it was dismissed on 14.01.2016.

5. In that view of the matter, we confirm the order dated 13.10.2015 and allow the writ petition in terms of the order in Baba Global Ltd. (Supra).

 ...................J.   [KURIAN JOSEPH]

         .......................J.         [ROHINTON FALI NARIMAN]

NEW DELHI;  JULY 18, 2016